Summary

While beep-tone warnings are likely sufficient to put a listener on notice that a call is being monitored or recorded in California, telemarketers should use caution when monitoring for quality control purposes.

Article

It may be industry practice for telemarketers to monitor or record both inbound and outbound telephone conversations for quality control purposes, but telemarketers must be careful to follow state wiretapping laws, particularly in California.

Most states only require the consent of one party to a conversation (i.e. consent from the service representative that is calling would be sufficient); however, California requires that all parties to a confidential conversation consent to monitoring or recording. Cal. Penal Code § 632.

“Confidential communication” is any communication in any circumstance in which the parties may reasonably expect that the communication will not be overheard or recorded. Id. at § 632(c). Telemarketers should assume that all calls are confidential calls.

While most telemarketers are aware that a greeting during a recording is sufficient notice to obtain consent (i.e. “Hello. This is company XYZ. This call is being recorded.”), the real issue is whether or not beep tone warnings provide adequate notice that a call is being monitored or recorded.

Perhaps because most people are aware that beep tones indicate a recording, there is little regulatory or case law guidance on the issue. However, a 1983 administrative decision from the California Public Utilities Commission held that a notice of monitoring or recording could be given by beep tone warnings as long as the beeps were audible to all parties to the conversation. Cal. Pub. Util. Code Gen. Order 107-B(II)(A).

In a recent California case, Kight v. CashCall, Inc., the court relied on the administrative opinion and concluded that beep tones give proper notice to all parties to a conversation. An unpublished case in the state also relied on the administrative opinion for beep tones as sufficient notice to obtain consent.

Although beep-tone warnings are likely sufficient to put a listener on notice that a call is being monitored or recorded in California, telemarketers should continue to use caution when monitoring for quality control purposes because of the high cost of violations.

California law provides that any person who violates the state wiretapping law can be subject to a penalty of $5,000 per violation or three times the amount of actual damages. When that figure is multiplied by each call made to every consumer, a telemarketing company could be looking at one of the largest class action lawsuits in history.

Conclusion:

Based on an administrative opinion by the California Public Utilities Commission and a few recent cases, beep-tone warnings are likely sufficient to put a listener on notice that a call is being monitored or recorded in California. However, more than one type of notice used to obtain consent to a recording, such as a statement in the greeting, would further strengthen a telemarketer against potentially damaging class actions.

Copilevitz, Lam & Raney, LLC

Copilevitz & Canter is a national law firm that has dealt with every state and federal law and regulator so we can perform services more effectively, quickly and affordably than general counsel. We represent tax-exempt organizations, professional fundraisers, commercial telemarketers and political callers in all aspects of First Amendment law. We are the nation's largest provider of state charitable fundraising registration services.